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Served 27 years for sex assaults he didn’t commit, B.C. man can’t sue Crown

Ivan Henry hugs his two daughters Tanya, left, and Kari after he was acquitted of eight counts of rape from a conviction in 1983 which sent him to prison for 27 years. The photograph was taken in Vancouver in October, 2010.

JOHN LEHMANN/The Globe and Mail

The man who spent 27 years in prison for a series of sexual assaults he didn't commit won't be able sue the Crown for negligence, the B.C. Court of Appeal ruled Tuesday.

Ivan Henry filed civil lawsuits against the provincial and federal attorneys-general, the City of Vancouver, and three members of its police department in June, 2011.

He is seeking damages for malicious prosecution, abuse of process, misfeance in public office, and an award for Charter damages for what he states in court documents were "egregious breaches" of the Crown's disclosure obligations.

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In April, 2013, Justice Richard Goepel of the B.C. Supreme Court allowed Henry to amend his pleadings on the topic of charter damages, and include an allegation that the Crown's actions were a "marked and unacceptable departure from the reasonable standards expected" of prosecutors.

But the defendants appealed, arguing Henry shouldn't be allowed to seek compensation for conduct that was negligent.

In a ruling posted online Tuesday, Justice John Hall of the B.C. Court of Appeal sided with the defendants, citing past rulings by the Supreme Court of Canada.

"As an intermediate appellate court, this court is clearly bound by pronouncements of the Supreme Court of Canada, and I consider those pronouncements currently foreclose negligence as a foundation for prosecutorial liability," said Hall, who was writing on behalf of the three-person panel.

He noted in three specific cases the country's top court denied liability against prosecutors for anything less than "malicious prosecution."

Hall said the lower court judge should have refused Henry's application to amend his pleadings.

Justice Anne MacKenzie and Justice Sunni Stromberg-Stein agreed with the ruling.

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Henry's legal counsel was unavailable to comment, and the province's Criminal Justice Branch declined to comment because the case is ongoing.

Henry was convicted of 10 offences involving eight complainants in 1983, and was declared a dangerous offender.

The B.C. Court of Appeal acquitted him of the offences in October, 2010, after hearing the judge made several mistakes during the 1983 trial.

The Crown also conceded that evidence wasn't disclosed to Henry, as it should have been, and if he was tried again he wouldn't be convicted.

The justices also heard Henry was held in a chokehold while victims picked him out of a police lineup.

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